Privacy and Security

It’s clear that in unionized environments the invasion of privacy imposed by random drug and alcohol testing will not be taken lying down. The drug and alcohol testing landscape is likely to get more complicated with the legalization of marijuana.

Employers who are governed by PIPEDA are recommended to remain informed on these issues because some of the above-mentioned recommendations may become part of future legislative and policy initiatives.

Federally-regulated employers, including those covered by the PESRA, should consider whether Bill C-65’s proposed changes require an examination or revision of current policies and practices on workplace violence or harassment.

While I would never have been able to predict at the time I started practicing employment law that I’d be writing about and advising clients on the risks associated with secret recordings in the workplace, it is a reality that is now a regular part of the modern workplace.

Employers need to be aware of the sexual tensions at play in an office, or risk being held liable for failing to address a poisoned work environment. For example, if two co-workers had a relationship and then broke up, and one is now showing revealing photos of the other around the office, this likely creates a poisoned work environment for the depicted employee. Though a manager may be tempted to deem the matter personal, the employer has an obligation to protect the employee.

On January 4, 2018, United States Customs and Border Protection (“USCBP”) updated its official policy on border searches of electronic devices. The new policy directive[1] (the “New Directive”) supersedes its prior policy directive (the “Prior Directive), which was issued on August 20, 2009[2]. The New Directive addresses some, but not all, of the issues that arise in relation to border searches of electronic devices.

Stories about artificial intelligence (AI) stealing our jobs and robots going rogue have been in our collective consciousness for years. Elon Musk has also sounded the alarm bells’, calling AI the “biggest risk we face as a civilization”. While he may know a few things I don’t, I can’t say that I agree. Always one to embrace technology, I think AI has great potential to be used by businesses in the HR space, such as to make hiring practices more efficient and more fair.

Another week, another list of public allegations of sexual abuse, sexual assault and sexual harassment against high profile men in the entertainment industry, politics and beyond. The onslaught of allegations, which began in earnest with the allegations against Harvey Weinstein, followed soon after by allegations against what appears to be almost every other man in Hollywood, created a #MeToo movement indicating that it is a rare occurrence for a woman to have not been abused or harassed, with many instances work-related.

On September 28, 2017, the Privacy Commissioner of Canada created a draft guidance document providing clarification on inappropriate data practices, specifically focusing on subsection 5(3) of the Personal Information Protection and Electronic Documents Act (PIPEDA). This provision is entitled, “Appropriate purposes”, and states that, “an organization may collect, use or disclose personal information only for purposes that a reasonable person would consider are appropriate in the circumstances”.

Many employers requesting personal information related to criminal, credit or medical circumstances may consider the requests to be legitimate in creating or maintaining the working relationship. However, they should be careful what they wish for.

A recent decision of the Ontario Superior Court of Justice has confirmed that, in certain scenarios, an employee’s dishonesty in the hiring process will constitute cause for dismissal. In this case, the plaintiff’s claim for wrongful termination was dismissed when the court found that the plaintiff’s omission on a security questionnaire amounted to dishonesty that went to the core of the employment relationship and was irreconcilable with sustained employment.